1. The facts of the case leading up to this appeal have been set out in the judgment of the learned Sessions Judge and also of my learned brother and need no repetition. The evidence discloses that articles of jewellery said to have been worn by the deceased Nanjamma have been traced to the possession of the accused persons within 6 days of the date of her death and seized under a mahazar 15 days thereafter. The appellants have not explained the circumstances under which they came to be in possession of the said articles. Section 114, Evidence Act, and in particular illustration (a) to that section warrants under the circumstances a presumption of guilt against the' appellants. The learned counsel for the appellants contended that the jwellery traced to the possession of the appellants are unidentifiable articles and as such there was no material to warrant a presumption under Section 114(a), Evidence Act.
2. A perusal of the charge to the jury in the judgment of the learned Sessions Judge indicates that the Judge drew the pointed attention of the Jurors to the aspect relying to the unidentifiable nature of the articles. The question whether the [articles are identifiable or unidentifiable is clearly la question of fact; The Jurors have after deliberation come to the conclusion that the articles were capable of identification and have on that basis returned a verdict of guilty against the appellants. It will not be proper for the appellate Court to differ from the verdict of the Jury regarding a question of fact, unless that verdict can be said to be perverse. It must therefore be held that the appellants have been correctly convicted for an offence under Section 392, Penal code. The conviction and sentence passed on them for an offence under Section 392, I.P.C., are confirmed.
3. The more important point for consideration in this case however is whether the appellants could also be deemed to be guilty of the offence of murder. The deceased Nanjamma has met with a violent and unnatural death. The injuries on her person and the opinion of the doctor regarding the cause of her death conclusively establish that she has been murdered.
4. The question is whether both the appellants or only one of them and, if so, which of them is and can be held to be guilty of murder. There is no direct evidence in the case to connect the appellants or either of them with the murder of the deceased. The prosecution rely first on the possession of the articles worn by the deceased with both the appellants a few days after her death and next on the failure of either of the appellants to give any satisfactory explanation regarding their possession of the said articles. The prosecution press into service the provisions of Section 114, Evidence Act, to support their contention that both the appellants must be deemed to be guilty of the offence of murder. The learned Advocate-General also contended that, apart from the presumption under Section 114, Evidence Act, there were other circumstances in the case which went to support his contention that the appellants are guilty of murder. Those other circumstances are :
(1) That the appellants have been held to be guilty of an offence under Section 392, I. P. C.;
(2) that the injuries on the person of the deceased could not have been caused by only one person;
(3) that the appellants knew the deceased and were in her company when the deceased left her house;
(4) that the deceased must have been murdered in the train; and
(5) that there are circumstances to indicate that the appellants travelled in the same train.
5. The conviction of the appellants for an offence under Section 392, I.P.C., by the learned Sessions Judge and the confirmation of that conviction by this Court do not prove that the appellants were also guilty of the offence of murder. It has already been pointed out that the confirmation by this court of the conviction of the appellants for an offence under Section 392 is largely, if not entirely, the result of the well-established rule that an appellate court should not interfere with the findings of facts by the Jury unless the said findings can be said to be perverse. The conviction of the appellants by the trial court was based not on positive or direct evidence adduced in the case but on a presumption under Section 114, Evidence Act.
6. The contention that the several injuries found on the person of the deceased could not have been inflicted by only one person does not impress me. The suggestion made on behalf of the prosecution that the deceased was a strong and well-built woman is the result of an inference drawn by a look into her photograph, exhibit P-1, which admittedly was taken several hours after the death of the deceased. Photographs and particularly photographs of a person taken several hours after death are very unsafe guides for gauging the build and strength of a person. The physical and chemical changes that follow physical violence and death make this obvious. The deceased was a woman of about 40 years. The appellants are 24 and 25 years of age respectively. It cannot under the circumstances be said, in any case conclusively, that only one of them could not have caused all the injuries seen on the person of the deceased.
7. The submission that the appellants knew the deceased and were in her company when the deceased left her house and the contention that the deceased must have been murdered in the train can be taken as established by the evidence on record; but these two circumstances do not warrant the conclusion that the appellants murdered or had anything to do with the murder of the deceased. The submission that the appellants travelled in the same train in which the deceased was murdered is a very relevant circumstance to be taken into account in deciding the question whether the appellants robbed the deceased but has at best a very remote bearing on the question whether the appellants murdered or had anything to do with the murder of the deceased. There is besides no direct evidence regarding the allegation that the appellants travelled with the deceased in the same train.
The learned Sessions Judge and the Jury have relied on the evidence of the prosecution witnesses who state that they saw the deceased and the appellants on the railway platform at Tiptur before the train started and they did not see them anywhere on the platform after the train steamed off. This evidence cannot be said to conclusively establish that the appellants travelled in the same train with the deceased, though it must be said that such an inference is permissible. The submission that the appellants may have left the platform without getting into the train and without being noticed by the prosecution witnesses is also equally permissible. It was also strenuously contended that the evidence of the prosecution witnesses on this point is not free from suspicion but even if the evidence on this point is accepted, the case for the prosecution regarding the charge of murder is not substantially furthered much less established.
8. No evidence has been let in to show that there was common intention on the part of the appellants to commit an offence. The charge against them did not include Section 34, I.P.C. There is no direct evidence or conclusive circumstances to show that the two appellants had arranged or agreed to rob the deceased, much less to kill her for that purpose. Even if it is assumed that the two persons had agreed to rob and did rob the deceased, there is no warrant for the proposition that both of them had agreed to cause hurt or hill the deceased. It may be that the injuries on the person of the deceased were caused after the robbery and for the perpetration of a crime other than robbery regarding which there was no privity between the appellants. The antecedents of the deceased and the alleged intimacy between the deceased and one, at any rate, of the appellants discernible in the evidence make such an inference plausible and even probable.
The murder of the deceased may not have been for the purpose of committing or concealing robbery and therefore totally unconnected with robbery. The jewels may have been removed from the person of the deceased after murder and even if it is assumed that removal of the jewels was prior to murder it does not necessarily follow that both the appellants are guilty of murder. It may well be that one protested against the infliction of injuries on the deceased and even implored the other not to hurt or kill the deceased. The argument based on the failure of the appellants to satisfactorily explain away their recent possession of stolen articles to buttress the submission that the appellants are guilty of murder is, as already stated, not strictly warranted by the words appearing in Section 114, Evidence Act. The said argument is based on a presumption which in its turn is itself based on another presumption. It appears to me to be unsafe to hold the appellants guilty on the strength of what may be termed as a Double Presumption.
9. The learned Advocate-General referred us to cases reported in -- 'Narayana v. Emperor', AIR 1933 Mad 233 (A) and -- 'Papiah v. Govt. of Mysore', 49 Mys H.C.R. 444 (B), and submitted that the accused-appellants must be held to be guilty of the offence of murder. The observations of Reilly J. in AIR 1933 Mad 233 (A) :
'It is not the law that the Judge or Jury must be certain that no other explanation of the facts is possible before they find the accused person guilty. But if their inference is that he is guilty it must be a reasonable inference, reached with due regard to all the circumstances and with such care and assurance as a reasonable man would think necessary before he drew an important inference in his own most serious affairs.'
were reiterated by the same Judge in a case reported in 'In re Earrappa', 17 Mys L.J. 158 (C),
'The inference to be drawn against an accused person from the unexplained possession of property concerned in the offence with which he is charged may, sometimes, be very seriously affected by the interval between the date of the offence and the date when the property is found to be in his possession. But in each case the proper inference to be drawn depends on the circumstances of the case.
* * * * Where, however, there is no such explanation forthcoming the fact that the accused is proved to have been in possession of such property is of far greater importance than the point of time when his possession of it is disclosed.'
These observations are opposed to the observations of their Lordships Wallace and Spencer JJ. reported in 'In re, Sogaimuthu Padayachi, AIR 1926 Mad 638 (D) respectively. Wallace J. in his judgment in 50 Mad 274 (D) says:
'In such a case I am confident that neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The court has to be satisfied, not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it.'
Spencer J. observed thus in AIR 1926 Mad 638 (D) at p. 640 :
'When the charge is that the accused committed murder or theft in a building or both, is it legitimate to presume that the accused are guilty of the more serious offence of murder because they are unable or unwilling to explain their possession of stolen property? I think the answer must be that if there is other evidence to connect the accused with the death of the murdered man, a jury, or in this country a Judge, may find upon circumstantial evidence that he is the murderer. But when the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered.'
It will be seen that these observations are more or less in line with the observations of Beaumont C.J. in a case reported in -- 'Basangouda Yamanappa (No. 1) V. Emperor', AIR 1941 Bom 139 (E) regarding the rule relating to circumstantial evidence :
'In my opinion, the rule is that circumstantial evidence must be consistent, and consistent only with the guilt of the accused, and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. No doubt one of the circumstances, which has to be taken into account, is the fact that the accused has offered no explanation, or has offered a particular explanation; but it must be borne in mind that in this country the accused cannot go into the witness-box, and is not bound to give any explanation at all. An accused person, who knows the law, is quite entitled to say: 'The evidence is just as consistent with the guilt of somebody else as with my guilt and that being so, there is a doubt, and you cannot convict me, and I am not going to open my mouth'. The fact that he does not open his mouth cannot be used against him. One must remember also that very frequently the accused is an illiterate person, and makes a statement under Section 342, Criminal P.C., which is obviously untrue. Very frequently he is not prepared to admit anything, whereas, if he was wise, he would admit facts which are definitely proved against him, and offer an explanation about them. But very often he will not admit anything. The fact that an accused is not willing to admit that he took part in a robbery which is proved against him ought not to prejudice the question whether he committed murder at the same time. (I particulary dissent from the view of Reilly J. that it is not the duty of the court to suggest possible explanations)'.
The two decisions reported in 'In re, Thipperudrappa', AIR 1954 Mys 53 (F) and 'In re Basappa', AIR 1951 Mys 1 (G), follow and reiterate the above principles.
10. The accused have to be presumed to be innocent until they are proved to be guilty and the onus is always on the prosecution to establish by conclusive evidence the guilt of the accused. The accused are not required to establish their innocence when they are charged with an offence under the Penal Code. It is well settled that circumstantial evidence must be so conclusive as to be incompatible with the innocence, of the accused to warrant a conviction.
11. The conviction of the appellants for the offence of murder is based upon the presumption to be drawn according to the provisions of Section 114, Evidence Act it has already been pointed out that Section 114 does not in terms warrant a presumption that the persons convicted of robbery on account of recent possession of stolen articles are guilty of murder. The accused are entitled to the benefit of doubt and their conviction for the offence of murder cannot, in my opinion, be sustained, and has to be set aside.
12. My learned brother has taken a different view on this question. The question is therefore referred to the opinion of a third judge according to the provisions of Section 429, Cr. P.C.
13. The appellants who were accused 1 and 2 in the Court of Sessions, Banglore Division, have been convicted for offences under Sections 302 and 392, I. P. C., and sentenced to transportation for life and to undergo R. I. for seven years respectively the sentences being directed to run concurrently.
14. The charge against them was that in the night of 8-6-1951 or in the early hours of 9-6-51 they murdered one Nanjamma and also robbed her of her jewels. These offences are said to have been committed during the course of the railway journey from Tiptur Railway station towards Arsikere or Shimoga. The body of Nanjamma with a large number of injuries Including several broken ribs was found in the lavatory of a First Class compartment when the train reached Shimoga station on the morning of 9-6-51. The 1st accused is said to have been on intimate terms with Nanjamma who had abandoned her husband P. W. 22 long ago and who was a petty shopkeeper in Ammasandra where A-1 was a Railway Porter in the railway station. A-3 was a resident of a village very close to Ammasandra. It is alleged that A-1 owed some moneys to Nanjamma and A-2 to the brother of one Bhivanna P. W. 13 and that there was demand for the return of the amounts and this is suggested to be one of the reasons why A-2 who was hard up joined A-1 to do away with Nanjamma, the other reason of course being that they wanted to rob her Jewels.
15. The case under Section 392 was tried with the aid of a Jury of 5 persons and they also aided the trial for the offence under Section 302 as assessors. The jury, after hearing the summing up of the case by the learned Sessions Judge, which we must observe has been clear, careful, exhaustive and fair to the accused persons, returned a unanimous verdict of guilty against both the accused of the offence under Section 392, and the assessors were unanimously of the opinion that both the accused were guilty of the offence under Section 302, I.P.C.
16. Sri V. Krishnamurthy, the learned Counsel who appears for the appellants, has urged that there has been some defect in the address to the jury by the learned Sessions Judge inasmuch as he has not made it quite clear to them that in a case like the present where the evidence is entirely circumstantial, the jury must be satisfied that such evidence is conclusive of the guilt of the accused. But it has to be observed that as a matter of fact the learned Sessions Judge has clearly told the jury that there is no rule of law to the effect that a conviction should be based only on direct evidence, that the law allows a conviction even on circumstantial evidence provided that one is satisfied that the circumstantial evidence adduced in the case is reliable and true. He has also referred them to the decisions laid down in 49 Mys H. C. R. 444 (B) where it has been held that where there is no direct evidence as to the crime and the whole evidence is circumstantial, to deduce an inference of guilt from such evidence the incriminating facts must be such as to be incompatible with the innocence of the accused; and to AIR 1951 Mys 1 (G) where it is laid down that a conviction cannot be based on the circumstantial evidence if an inference consistent with the innocence of the accused is possible even if such evidence is believed. That point could not therefore have been put more clearly to the jury.
Sri Krishanamurthy has next urged that the evidence of P. W. 29, a police constable, who deposed that he saw the accused in the Arsikere railway station' in the early hours of 9-6-51 waiting for the train to take them back to Ammasandra, is highly suspicious and that the learned Sessions Judge has not sufficiently cautioned the jury from accepting it. The point that was apparently attempted to be made before the Sessions Judge, as against that witness was that it was clear that he was sent for by the Investigating Officers on 19-6-1951 at a late stage of investigation only with a view to identify the accused 1 and 2 and that there was some discrepancy as to whether he was on duty at the railway station platform at Tumkur (vide Ex. D-6) or on lock-up guard duty. A further reason is mentioned why P. W. 29's evidence should be viewed with grave suspicion. P. W. 29 has stated in cross-examination that when he came to Tumkur he was deputed as a guard to the lock-up at the Town Police Station and that he saw these accused in the lock-up and that he told the Sub-Inspector siddappa P. W. 48, about his having seen them at Arsikere station.
It appears from the special diary of investigation maintained by P. W. 48 and his evidence in Court that this witness P. W. 29 was examined on 20-6-51. It is clear from the arrest report that A-1 had been arrested by that time while A-2 was arrested only on 21-6-51 a day later, and it was naturally argued with some apparent force that P. W. 29 should not be believed and that the investigation itself was not straightforward. But this point was not however put in that way to the Sub-Inspector, P. W. 48, while he was in the box and it is quite clear from the very entry in the police diary on which the appellant relies that the Sub-Inspector has noted that P. W. 29 has identified only A-1 on the 20th and that A-2 had not been apprehended by that time though he was said to be moving about in the locality and the Sub-Inspector directed his men to trace him. There is therefore nothing in this point and moreover P. W. 29 does not even say that he saw both the accused together and identified them on the same occasion.
The learned Sessions Judge has in paragraph 22 of his judgment clearly stated the arguments of the learned Counsel for the defence about the transfer of P. W. 29 to Tumkur and that his evidence is highly suspicious and he has left it to the jury to judge whether the evidence of this witness was true or not. The case for the prosecution may not seriously suffer even if P. W. 29's evidence is not accepted though by saying so it need be inferred that his evidence cannot be believed. There is also no reason why it should not be believed. He has referred to a conversation with A-1 that night and there is no reason why he should invent a story of that kind; nor is it likely that the prosecution should have concocted an incident which is not really a very important link in their case. The prosecution has really to show that the deceased and the accused were together on their journey towards shimoga where the body of the deceased was found and they have tried to show that on the return journey A-1 and A-2 were alone. Though it might be relevant or even a strong probabilising circumstance it cannot be said to be a vital one on which the truth of the prosecution case would hinge.
17. It has been held recently by the Supreme Court in : 1954CriLJ451 (H) that if the facts and circumstances of the case are such that a reasonable body of men could arrive at the one conclusion or the other it is not competent to the Sessions Judge or the High Court to substitute their verdict in place of the verdict which has been given by the jury, that the jury are the sole judges of the facts and it is the right of the accused to have the benefit of the verdict of the jury; that even if the Sessions Judge or the High Court would if left to themselves have arrived at a different verdict it is not competent to the Sessions Judge to make a reference, nor the High Court to accept the same and substitute their own verdict for the verdict of the jury provided the verdict was such as could be arrived at by a reasonable body of men on the facts and circumstances of the case and that the High Court will only interfere with the verdict of the jury if it finds the verdict 'perverse in the sense of being unreasonable' 'manifestly wrong' or 'against the weight of evidence'.
In support of that judgment they have referred to -- 'Ramanugrah Singh v. Emperor where it has been observed that the High Court should accept the jury's verdict and not substitute their own verdict for the verdict of the jury unless the verdict was such that no reasonable body of men could have reached at the conclusion arrived at by the jury.
18. As regards the charge under Section 302, I.P.C., also it appears to me that the case has been clearly made out against the accused. That the deceased Nanjamma was wearing the jewels which have been recovered as a result of information supplied by the accused and hence traced to them has been spoken to by P. Ws. 20, 21, 25, 26 and 27. Nanjamma was living as a tenant in the house of P. W. 22 who is the husband of P. W. 20 and son of P. W. 21 and they as well as P. W. 19 her daughter have also identified the jewels as hers. P. Ws. 25 and 27 who are neighbours and P. W. 26 have also corroborated their evidence that she was wearing those jewels when she left Ammasandra.
There is also the evidence of P. W. 43, the jeweller who sold the jewels, supported by the bills issued from his shop and the evidence of P.W. 23 his clerk and of P. W. .41 who had accompanied the deceased when she bought some of those jewels, that the jewels were purchased by the deceased. The jury were asked to consider whether the evidence oral and documentary let in by the prosecution established that those jewels belonged to the deceased Nanjamma and that she was wearing them; and they have by their verdict accepted the same as proved and that they were in her possession at the time when she left her house on the night of 8-6-51.
19. The jewels have also been traced to the possession of Accused 1 and 2 on the information given by them. P. Ws. 30 and 31 have sworn that A-1 who was known to them brought a pair of 'voles' M. O. 15 and borrowed Rs. 25/- from P. W. 31. P. W. 44 Krishnaiahsetty produced M. O. 16 some gold 'kasus' and M. O. 20 a silver waist belt which he had purchased from A-2 under the bills Exs. P-31(a) and P-31(a)(l) and stated that he purchased a silver waist thread M. O. 41 as per Ex. P-32(a) which contains his name. P. W. 39 Sunnilal has deposed that A-2 sold him some 'gundus' and gajjes', one gold thali and some gold pieces or powder for Rs. 34/- as per Ex. P-29 in his account-book to which A-2 has affixed his signature. The witness kept some of the 'gundus' as they were good and the rest he melted into a gold ingot. He has produced M. O. 18 the 'gundus' which he had preserved and the gold ingot M. O. 22 when the Police came and asked him to produce the gold articles which A-2 had sold to the witness.
The evidence of P. W. 39 has been corroborated by the evidence of P. W. 47 who valued the jewels. P. W. 8 has produced a gold coin which A-2 is said to have sold him for Rs. 9/-. The accused denied their signatures and also denied altogether that they pledged or sold these jewels. The jury to whom this part of the case was put have believed the prosecution story; and on going through the evidence of these witnesses I see no reason at all why this large body of apparently disinterest ed evidence should be rejected and the bare denial of the accused accepted.
20. That A-1 and A-2 were in the house of the deceased on the night of 8-6-51 when she left with P. W. 25 to the station has been spoken to by P. W. 25. He asked the deceased whether she was going to a distant place like Bhadraratbi alone when she said that A-1 and A-2 were going with her. He says that when the train came from Gubbi side A-1 and A-2 and Nanjamma went into the carriage and the witness was on the platform till the train left. P. W. 28 Gongoji Rao saw the three persons at the Tiptur Railway station.
A good deal of comment has been made on this witness's evidence; but there can be no doubt that the witness has deposed to the truth. He had known the accused and had also seen Nan-jamma. They arrived in a local train from Bang-lore side and reached Tiptur at 9-30 P.M. on 8-6-51. He spoke to A-1 and the latter said that he was going to Birur and that Nanjamma was going to Bhadravati. A-1 invited him to a cinema and the witness who was a Railway Porter said that he was on duty. Then the accused and Nanjamma went into the town and returned and told the witness that the show in the cinema had already commenced. He saw the three persons again on the platform. Later when the mail train came from Bangalore side he saw all the three persons on the platform and they were no longer on the platform after the train left. It is urged by Mr. Krishnamurthi that the same is not conclusive that they left together from Tiptur. But it can very properly and safely be inferred that if they had remained behind they would have been noticed by P. W. 28 as they were known to him. There is therefore no substance in that contention.
21. Mr. Krishnamurthi has urged that it may be that the accused may be presumed to have stolen the jewels or received them from someone else who had stolen them and that possession of those jewels does not necessarily prove that they had committed the murder. There is no force in this contention either. It has been found that they have been guilty of robbery and that finding almost by necessary implication establishes the offence under Section 302, I.P.C.
22. It has also been urged that it cannot be said with certainty in this case as to which of the accused committed the murder. The deceased was a woman of about 40 years age and from the photograph Ex. P-1 appears to be well built and strong. There were as many as 23 wounds on her person and as many as 6 or 7 of her ribs on each side were found broken when her body was recovered and it is impossible that all these injuries could have been inflicted by one man; and it is to be observed that none of the accused bore any marks of injury. This would indicate that both the accused must have overpowered the woman when she was lying down or was asleep and killed her by sheer physical violence even without any arms.
In this connection reference may be made to a case reported in AIR 1941 Bom 139 (E) where a deceased woman was found robbed and murdered : The three accused who produced the stolen property came from the same village as the deceased and were acquainted with her: They did not offer any explanation of the possession of the property but merely said that they did not produce it: The murder was committed with a crowbar: It was held that in view of the fact that the accused were known to the deceased and came from the same village as the deceased the only rational explanation which fitted in with the whole of the evidence was that pursuant to their common intention to rob the deceased, and to avoid detection they had the further intention of murdering her and that they carried that intention out.
Beaumont C. J. and Sen J. on circumstantialevidence very similar to the present case upheld the conviction and sentence of death passed on three persons in that case See also -- 'Ram-prashad Mokundram v. Crown . Even in -- 'Tulsi-ram Kanu v. The State', : AIR1954SC1 (K), which was relied on for the appellants, it is pointed out that the presumption permitted to be drawn under Section 114, illustration (a), has to be read along with the time factor and that if ornaments or things of the deceased are found In the possession of a person soon after the murder the presumption of guilt may be permitted. But if several months expire in the interval the presumption may not be permitted having regard to the circumstances of the case. Moreover, in that case the ornaments were not proved to be the ornaments of the deceased.
23. In the light of the above discussion I think that there are no grounds to interfere with the convictions and sentences passed on the appellants-accused and this appeal is accordingly dismissed.
(As the matter was referred to a third Judge on account of differing Judgments this appeal came on for final hearing on 18-8-54 and the Court delivered the following:)
24. The case against the accused is that on the night of 8-6-1951 they travelled with one Nanjamrna in the mail train from Tiptur to Arasikere, murdered her and robbed her of a silver belt, a pair of ear ornaments (voles) and a 'Kari-manisare', said to contain some gold beads and a few, what are known as 'Lakshmi Kasus'.
25. Evidence has been let in to show that when the accused came to the house of the deceased and stated that they were travelling that night to Birur by train, the deceased said that she would also travel in the same train to Bhadravathi and that the accused went away saying that they would go in advance and that she might come to the station later. It is in evidence that the accused and the said Nanjamma travelled to Tiptur from Ammasandra, where she lived to catch the mail train in which they had to travel as it does not stop at Ammasandra. They were all seen waiting for the mail train at Tiptur, but A. 1 and A. 2 alone got down the mail train at Arasikere. The prosecution case is therefore that the accused must have murdered her in the mail train between Tiptur and Arasikere Railway Stations. The dead body of Nanjamma was found in the lavatory of a first class compartment at Shimoga railway station on the early morning of 9-6-51, with broken ribs and abrasions.
* * * * *
26. As regards the conviction and sentence of the accused of the offence of murder there is difference of opinion between the Chief Justice and Vasudevamurthy J. and the question has been referred to me for decision under Section 429, Cr. P. C. It will be noticed that the offence under Section 302, I. P. C., is triable with the aid of assessors. The Judges are not bound by the opinion of assessors as they are bound by the verdict of Jurors. As observed in AIR 1946 P. C. 151 (I);
'The Legislature drew a sharp distinction between a trial by jury and a trial with the aid of assessors. A jury, aided by the Judge, is the final tribunal for deciding the facts; assessors merely aid the Judge who decides the facts as well as the law'.
27. Some evidence has been let in to show that the accused and the deceased travelled in the same train. This by itself could be of no consequence as a large number of persons must have travelled in that train. It is not even in evidence that they travelled in the same compartment. On the other hand what is significant is that the accused never showed any interest in taking her to the train with them. When the woman offered to travel with them they stated that they would be going to the station to catch the train and that she could come to the station later. It has not been shown that the accused had any motive worth the name to commit the murder. What is said to have been realised by the sale of the jewels is about a couple of hundred rupees.
While cases are known where infants are killed for the sake of jewels worth a few rupees, it is difficult to conceive of murder of an adult woman in a moving train full of people merely to rob her of jewels worth a couple of hundred rupees. To me it looks more like a case of the deceased having been brutally murdered somewhere in a lonely place and the dead body having been some how brought at midnight and placed in the lavatory of a first class compartment.
It is difficult to believe that the deceased was murdered in a law minutes after the mail train left Tiptur station and reached the busy station at Arasikere which is only a few miles away from Tiptur. It has not been shown that there were any signs of blood or marks of struggle inside the compartment and the story that she was assaulted without her cries being heard by the people travelling in the adjacent compartment in the moving train within half an hour between Tiptur and Arasikere appears to me to be wholly improbable.
28. As regards the first accused it is not contended that he can be convicted of the offence of murder unless the ear rings M. O. 15, said to have been worn by the deceived is traced to the possession of this accused. As stated by the learned Sessions Judge:
The case for the prosecution is that A 1 had pledged M. O. 15, with P. W. 31, and had taken a loan of Rs. 25/-. P. W. 31 has sworn to it. Her evidence is that A 1 gave her M. O. 15 and asked for a Joan of Rs. 25/-, that she had no money, that she borrowed Rs. 20/- from P. W. 30, Lakshamma on the pledge of M. O. 15, that she had Rs. 5/- with her, and that this Rs. 25/-she gave to A 1. It was contended by the learned counsel for the accused that P. W. 31 did not support the case for the prosecution in the lower Court, that as a result she was treated as hostile, that in this Court she has come and supported the case for the prosecution and that her evidence cannot at all be believed. The Public Prosecutor on the other side urges that as a result of threat of A 1's brother P. W. 31 Sm. Sivamma did not speak the truth in the lower Court, and that what she has stated in this Court is true'.
The reason given by the learned sessions Judge for believing the evidence of P. W. 31 in the Sessions Court though her version in the lower Court was inconsistent with A 1 having pledged M. O. 15, with her, is that her evidence is fully corroborated by the evidence of p. W. 30 and P. W. 32 Yaduraiah. If this is correct there is some justification for the learned Sessions Judge believing the evidence of P. W. 31. P. W. 30 Lakshamma has stated that A l had come to the house of P. W. 31, Shivamma and that Shivamma told her that he had come to buy butter. She states that Shivamma pledged with her a pair of ear rings M. O, 15. She has riot stated that the accused has anything to do with the earrings. P. W. 32 is a blacksmith whom P. W. 31 is stated to have consulted about the value of M. O. 15. P. W. 32 does not say about his having any personal knowledge of A 1 having given M. O. 15 to P. W. 31. What he deposes is merely what he remembers to have heard. It cannot be said therefore that there is any evidence worth the name to corroborate the version of P. W. 31 that A1, gave M. O. 15 a pair of Voles, to her. Her own evidence on the point in the committal Court is inconsistent with A 1 having given M. O. 15 to her. It will thus be noticed that the only piece of evidence but for which the 1st accused cannot be held to be guilty of murder is completely shaky and cannot be relied on,
29. As regards A 2, there is evidence to show that he disposed of M. O. 20 a silver belt and M. Os. 16, 17 and 18 some gold beads etc. tied in a string M.O. 19 as per Exts. P. 29 and 31. These articles purchased from a shop in Tumkur have no identification marks by which any one of thepurchasers from that shop, can distinguish articlespurchased by him from similar articles purchasedby others. The learned Sessions Judge observes:
'It was pointed out by the learned counsel forthe defence that none of these jewels bear anyspecial mark of identification, and that thereforethese jewels cannot be held to belong to thedeceased in spite of the oral and documentaryevidence referred to above. No doubt, it is truethat these jewels do not bear any mark ofidentification, taut the oral 'evidence of P. W. 20Sm. Ningamma, P. W, 21 Section Deveeramma,P.W. 25 Sri Muddalingiah, P.W. 26 Sri Mariyappa and P. W. 27 Sri Mudda Maistry, andparticularly that of P. W. 20 and P. W. 21 whowere closely in contact with the deceased andwho were seeing the deceased wearing these jewels for a sufficiently long time, is sufficient to conclude that these jewels belonged to the deceased. In a pase reported in --'Parsurama v. Govt. of Mysore', 55 Mys HCR 48 (L), their Lordships have held that the existence of any special mark of identification is not invariably' a criterion for a person knowing that a particular article was used by another, inasmuch as people often recognize a thing by touch or look. The substance of that decision appears to be that it is possible for persons who have constantly seen an article being in possession of another to say that the article belongs to such and such a person, even without any particular mark on it. So, I do not see much substance in this contention.'
P. W. 26 says :
'When she came to P. W. 22's brother's house, she had white stoned earrings. The other jewels must have been got made subsequently. I do not know about them. I know the jewels that my wife wears. I cannot say what jewels my neighbours wear. There are no identification marks on these jewels. I stated in tower Court that I did not know what jewels my wife wears'.
P. W. 27 says :
'I was not going to her house or shop. My womenfolk used to talk to her when she used to come to my house. I was not talking to her. Jewels of the like can be had elsewhere also'.
P.W. 20 admits that she had not used the jewels at any time. P. W. 21 admits that she Has not touched them. P. W. 25 admits:
'If these are mixed with other similar jewels and Kasus it is not possible to pick these'.
30. Silver belt and a string of what is known as Karimanisara containing gold beads or gold kasus are almost what every woman in villages wears and it looks to me strange that any person who has not worn such articles or handled them could identify one set of them from another. If as in this case the string is cut and loose gold beads etc., have to be identified I seriously doubt whether they could be identified at all even by persons who have handled the string of these when they were bound by it. None of the witnesses were living with the deceased. They had not touched them. The observation in -- '55 Mys HCR 48 (L)', is applicable to case of very much bigger articles that are identified by an inmate of the house in, which the person wearing the article was also residing and had occasion to handle it. The observation cannot apply to persons who have seen small articles like ear rings, beads or a belt worn by a woman from some distance as in this case. That is the only way this decision has to be understood, as the opinion in this case is to be reconciled with the opinion in -- 'Puttamadasetty v. Govt. of Mysore', 54 Mys HCR 493 (M), dealing with a case of ear-rings, R. Venkataramaiya J, being a party to both these cases. The articles traced to the possession of A2 are not identifiable-and it cannot be said that they are articles worn by the deceased
31. Wallace J. observed in '50 Mad 274 (D)'.
'In such a case I am confident that neither law nor justice justified the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The Court has to be satisfied, not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it'.
32. Now in this case first accused has been shown to be one of the persons in intimacy with the deceased and the contention that he might have got these jewels from her for disposal and got them disposed of is not on the face of it so absurd as not to need some consideration. Any way unless it is shown that the jewels were worn by the deceased before she left her village and that they could have been removed from her only after her being murdered no presumption would arise that the accused committed the murder merely on the ground that her jewels are found with them. As regards the evidence of the jewels being found bn the person, the evidence again is shaky. P. Ws. 20, 21 and 25 state that they saw the belt M. O. 20 and the string of Karimanisara containing M. Os. 16 to 19. P. W. 20 admits that 'It was a dark night when she left the house. It was late for train. She was in a hurry'. P. W. 21 concedes 'It was very dark. So she took Muddalingiah', The latter examined as P. W. 25 also says so.
33. It cannot therefore be said that these witnesses were able to notice that the woman was wearing silver belt M. O. 20, or the string containing M. Os.. 16 to 18. The evidence of these persons having seen the deceased leaving the house for catching the train is highly doubtful. P. W. 25 Muddalingiah who states that he took her from her house to the train deposes that 'When I took Nanjamma to station, P. W. 20 and P. W. 21 were near their house. They were inside. Nanjamma called out to them and asked them to look after the house. P. W. 20. and P. W. 21 did not come outside.' P. W. 20 says that Nanjamma did not come to their house on that night and that she did not stop and talk to them as it was late for train. The evidence of these witnesses would make it clear that while P. Ws. 20 and 21 were inside Nanjamma did not come there. P. W. 26 says that the deceased bowed down to touch the legs of P. W. 21. Any way the evidence on record does not prove beyond reasonable doubt that the accused were in possession of the Jewels worn by the deceased prior to her death.
34. Assuming however that certain jewels of Nanjamma had been traced to the possession of the accused soon after the murder the point that arises for consideration is whether a presumption arises that the accused are the persons who actually murdered her. It must be remembered that under Section 114, Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The presumption that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen is not what is stated hi the section itself but is found as an illustration to it. This is an illustration to show how presumption under Section 114 could be drawn. No doubt possession of stolen articles soon after theft raises a presumption that the person in possession of the articles is the thief. But to draw a further presumption that persons found in the possession of stolen articles must have committed the murder of the owner of the stolen articles other circumstances are necessary. As Spencer C. J. observed in AIR 1926 Mad 638 (D),:
'When the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered.'
I may also refer to the decision reported in 54 Mys. H. C. R. 493 (M) where it is observed :
'Before a presumption of murder can be drawn against the accused from the mere unexplained possession of an article shown to have belonged to the deceased, there must be evidence to show that the article recovered from the accused was not only in the possession of the deceased at the time of murder but also that it could not have been transferred from the deceased to the accused, except by the person being murdered.'
In 'cases in which it has not only been shown that stolen articles have been traced to the possession of the accused but also that these articles were in possession of the deceased at the time of the murder and that they could not have been removed without the deceased being murdered, the presumption of murder also would follow. I may here refer to the decision reported in 17 Mys. LJ 158 (C) where an old man wearing a gold surge was-murdered and the accused who were found in possession of the same were convicted. surge could not have been removed without murdering the deceased who was found to be wearing it at that time. AIR 1941 Bom 139 (E) and are cases of the same kind.
35. Another point that arises for consideration in this case is that medical evidence makes it clear that the only injury that caused the death is the injury due to the breaking of ribs of the deceased. According to the doctor:
'To cause fracture of the ribs on both sides ofthe chest, there might be pressure used on themiddle of the chest ** ** **
The ribs must have fractured simultaneously.' It is thus clear that the murder was committed by only one person. The prosecution case is that both the accused were present at the time of the murder. As it is shown that the death could have been caused only by one of them, it is clear that neither of them can be convicted of murder unless it is shown that the murder was committed in furtherance of a common intention. It was observed by Vankataramiah J. in AIR 1954 Mys 53 (F) :
'Existence of common intention to assault Kotrappa which is necessary for application of Section 34, I.P.O., may be inferred from the acts of the accused in jointly attacking him. This is not by itself enough to render them guilty of the offences under Section 326 and the fact that Kotrappa subsequently died cannot necessarily imply a common intention to cause death There is absolutely no proof of any motive for the assault, of what led to it and of the part played by each in the incident. Of the injuries caused to Kotrappa only the first which is a fracture to the skull is serious and such as is likely to cause death in the opinion of the doctor. But for this injury the person may not have died. The evidence does not show who, as between the two accused, caused this injury. It may be that the common intention was only to give an ordinary beating as indicated by the other injuries and one of the accused suddenly in rage or excitement struck the man on the head.'
It was held in that case that as there was nocommon intention to cause death and the actcommitted was not in furtherance of any common intention, both the accused could be convicted onlyof the offence of voluntarily causing hurt punishable under Section 323, I.P.C., but not of murder.
36. In this case there is not even the evidenceto show that both the accused took part in thebeating of the deceased. According to the doctor; 'The abrasions might be due to a struggle. The ribs must have fractured simultaneously'. As such it is difficult to convict either of the accused of the offence of murder as it is not shown which of them fractured the ribs and thus committed the murder. It is no doubt true that if both the accused had the common intention of committing robbery and murder both of them might be convicted of murder as well as of robbery, as wasdone in the case reported in AIR 1941 Bom 139 (E)
In that case it will be noticed that the objectof murder was undoubtedly robbery, as boxes had been broken open and large number of ornamentsand other articles had been taken away. In this case as already observed by me the value of thearticles are a couple of hundred rupees only and it is not possible to hold that the accused had any intention of murdering the deceased with theobject of taking away the jewels. In fact it cannot be said that any of the accused and particularly the second accused could have any motive for murdering Nanjamma and there could have been no common intention of murdering her. The fact that they did not, according to the evidenceof the prosecution, try to take the woman with them to the train, but went away to the railway station leaving her free to take the train with them or not, makes it clear that they had no such intention. If at all, any one of the accused murdered her it must be due to some quarrel or sudden difference of opinion between the deceased and one of them he being possibly the first accused who is said to have been in intimacy withthe woman who was of a very loose character. No case of common intention is made out and it is not made out definitely which of the accused murdered her. On the whole I do not think that a case is made out for convicting either of the accused for the offence of murder. The conviction and sentence of the accused for the offence of murder are therefore set aside.
37. Order accordingly.